U N IT E D S T A T E S D IS T R IC T C O U R T S O U T H E ... Complaint (filed).pdf · c ase n o. 2 :10-cv-14175-k m m c ent er f or b io l og ic a l d ivers ity; do gw oo d a lli

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UNI T E D ST A T ES DIST RI C T C O UR T SO U T H E RN DIST RI C T O F F L O RID A

F O R T PI E R C E DI V ISI O N

Case No. 2:10-cv-14175-K M M

CENTER FOR BIOLOGICAL DIVERSITY; DOGWOOD ALLIANCE; SIERRA CLUB; GLOBAL JUSTICE ECOLOGY PROJECT; INTERNATIONAL CENTER FOR TECHNOLOGY ASSESSMENT; and CENTER FOR FOOD SAFETY, Plaintiffs, vs. ANIMAL AND PLANT HEALTH INSPECTION SERVICE; and UNITED STATES DEPARTMENT OF AGRICULTURE, Defendants. _______________________________________

PLAINTIFFS’ AMENDED C O MPL A IN T F O R D E C L A R A T O R Y A ND INJU C T I V E R E L I E F

Case 2:10-cv-14175-KMM Document 15 Entered on FLSD Docket 08/10/2010 Page 1 of 32

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INTRODUCTION

1. Plaintiffs Center for Biological Diversity, Dogwood Alliance, Sierra Club, Global

Justice Ecology Project, International Center for Technology Assessment, and Center for Food

Safety challenge the decisions and approvals by Defendants Animal and Plant Health Inspection

Service and U.S. !"#$%&'"(&)*+),-%./01&0%")23"%".($+&"%)4,56789:)*+)(0'"%*0;)#"%'.&;)&3$&)

authorize the planting and flowering of a genetically engineered hybrid of Eucalyptus tree in

seven states in the southeastern United States. The company ArborGen LLC is conducting open

+."1<)&";&;)*()&3.;)-"("&./$11=)"(-.(""%"<)4/*1<-&*1"%$(&9)Eucalyptus hybrid at multiple

undisclosed sites across the southeastern United States, in hopes that it will become widely

planted in commercial plantations across the region for pulp and biofuel production. See

http://www.arborgen.us/uploads/presentations/southern-forest-tree-improvement_6-09.pdf.

2. APHIS has authorized ArborGen to import this experimental Eucalyptus hybrid

into the United States, has granted at least seven permit requests from ArborGen which authorize

the planting and flowering of the Eucalyptus hybrid on hundreds of acres at over 28 undisclosed

1*/$&.*(;>)$(<).;)/0%%"(&1=)/*(;.<"%.(-),%?*%@"(A;)#"(<.(-)%"B0";&)&*)4<"%"-01$&"9)&3.;)("C)

Eucalyptus hybrid which would allow the genetically engineered hybrid to be planted in

commercial plantations throughout the region. AHPIS, however, has not prepared an

4"(D.%*('"(&$1).'#$/&);&$&"'"(&9)24E789:>)#0%;0$(&)&*)&3")F$&.*($1)E(D.%*('"(&$1)5*1./=),/&)

24FE5,9:>).()*%<"%)&*)$;;";;)&3")/*'?.("<)"(D.%*('"(&$1).'#$/&;)*+)&3";")(0'"%*0;)

experiments along with the pending deregulation petition. APHIS has instead prepared two

;"#$%$&")4"(D.%*('"(&$1)$;;";;'"(&;9)24E,;9:)&3$&)$<<%";;)*(1=)&3%"")*+)&3");"D"()#"%'.&;G))7()

addition, APHIS has not consulted with the United States Fish and Wildlife Service concerning

the adverse affects of these multiple permits on threatened and endangered species in the region.


http://www.arborgen.us/uploads/presentations/southern-forest-tree-improvement_6-09.pdf

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Nor has APHIS complied with Congressional mandates enacted in the 2008 Farm Bill requiring

more rigorous oversight for the field testing of genetically engineered organisms 24@EH;9:.

JURISDICTION

3. Jurisdiction is proper under 28 U.S.C. § 1331 and 28 U.S.C. § 1346, because this

action involves the United States as a defendant and arises under the laws of the United States,

including the Ad'.(.;&%$&.D")5%*/"<0%"),/&)24,5,9:>)I)JG8GKG)LL)IIM)et seq.; NEPA, 42 U.S.C.

§§ 4321 et seqN)$(<)&3")E(<$(-"%"<)8#"/.";),/&)24E8,9:>)MO)JG8GKG)LL)MIPM>)et seq. An actual

justiciable controversy exists between Plaintiffs and Defendants. The requested relief is proper

under 28 U.S.C. §§ 2201-02, 5 U.S.C. § 706, and 16 U.S.C. § 1540(g). The challenged actions

are subject to this Court's review under 5 U.S.C. §§ 702, 704, and 706, and 16 U.S.C. § 1540(g).

VENUE

4. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because a

substantial part of the property that is the subject of the action is within the district.

PARTIES

5. Plaintiff Center for Biological Diversity 24&3")K"(&"%9:)is a non-profit corporation

with over 250,000 members and online activists, including thousands of members in the

southeastern United States. The Center works to insure the long-term health and viability of

animal and plant species across the United States and elsewhere, and to protect the habitat these

species need to survive. The Center works through science, law, and creative media to secure a

future for all species, great or small, hovering on the brink of extinction.

6. Plaintiff Dogwood Alliance is a southern United States forest protection

organization with numerous members in the counties affected by the approved permits. The

Dogwood Alliance mobilizes diverse voices to defend the unique forests and communities of the


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southern United States from destruction by industrial forestry.

7. Plaintiff Sierra Club brings this action on behalf of itself and its more than

750,000 members. The Sierra Club is a nonprofit corporation headquartered in San Francisco,

California. The Sierra Club is dedicated to exploring, enjoying, and protecting the wild places of

the earth; to practicing and promoting the responsible use of the earthAs ecosystems and

resources; to educating and enlisting humanity to protect and restore the quality of the natural

and human environment; and to using all lawful means to carry out these objectives. The Sierra

ClubAs concerns encompass endangered species, habitat protection, forest ecosystems, pollution,

genetic engineering, and industrial agriculture. The ClubAs particular interest in this case and the

issues which the case concerns stem from !"+"(<$(&;A approval of the genetically engineered

Eucalyptus hybrid forest tree for use in extensive field trials in seven southern states near where

members reside. The Sierra ClubAs Genetic Engineering Committee educates the public and

advocates for regulatory reform to protect the natural environment and human health from the

threats posed by the release of novel GEOs, including genetically engineered crops such as the

Eucalyptus hybrid forest tree;)&3$&)$%")&3");0?Q"/&)*+)!"+"(<$(&;A approval determination at issue

herein. The Sierra ClubAs members are, and will be, injured by the escape and proliferation of

Eucalyptus hybrid forest trees. Sierra Club has members in every state. The Sierra ClubAs

members include timber growers, farmers, ranchers, and rural residents who live in rural

locations where Eucalyptus hybrid forest trees will be grown and who will be affected by the

Eucalyptus field trials. Members who grow native timber crops may lose their economic

incentive to grow their native tree crop of choice and suffer from a reduced market if their lands

are polluted with the Eucalyptus hybrid. Sierra Club members also regularly participate in

extensive outings and field trips to native habitats and ecosystems that are free of genetically


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engineered materials, and may lose their ability to enjoy wild places. !"+"(<$(&;A approval of

the widespread planting of Eucalyptus hybrid forest trees adversely affects Sierra Club and its

members, because this approval will allow genetically engineered Eucalyptus trees to be placed

in the environment without adequate environmental review, or any other limitations.

8. Plaintiff Global Justice Ecology Project 24@RE59:)explores and exposes the

intertwined root causes of social injustice, ecological destruction and economic domination with

the aim of building bridges between social justice, environmental justice and ecological justice

groups to strengthen their collective efforts. Within this framework, GJEP programs focus on

Indigenous Peoples' rights, protection of native forests and climate justice. GJEP uses the issue

of climate change to demonstrate these interconnections. GJEP is the North American Focal

Point of the Global Forest Coalition.

9. Plaintiff International Center for Technology Assessment 247KS,9:).;)$)&$T-

exempt, non-profit organization incorporated in the District of Columbia that is committed to

providing the public with full assessments and analyses of technological impacts on society.

ICTA is devoted to fully exploring the economic, ethical, social, environmental and political

impacts that can result from the applications of technology or technological systems. Over the

1$;&)&"()="$%;>)7KS,A;)#%*-%$')$%"$;)include inter alia addressing the environmental, economic

and ethical concerns raised by the development and commercialization of agricultural and

forestry technologies such as the GEOs at issue in this case.

10. 51$.(&.++)K"(&"%)+*%)U**<)8$+"&=)24KU89:).;)$)($&.*($1)(*(-profit membership

organization with over a hundred thousand members nationwide, including thousands in the

southeastern United States. CFS works to counter the harmful impact of industrial agriculture

and promotes more sustainable alternatives. In furtherance of this mission, CFS utilizes policy,


http://r20.rs6.net/tn.jsp?et=1103493692384&s=29&e=001m5A2JkgdirqSujAxrWu92TYpsB5u28K1-vJuoJoE2c2vaGKtF2Zh5ollJxzhoniSRbvM0YF3y9Xa4Yo13LFwXNKr3P76y20voMzdHWx_bjOFMzyC0fiZJAr5PczGILSR

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scientific, legal, educational, media and outreach mechanisms. Since its inception CFS has

sustained an active program on the impacts of GEOs and is the leading United States public

interest legal organization working to provide oversight, transparency and analyses of GEOs

before their introduction into the natural environment. CFS has offices in Washington, DC and

San Francisco, California and is incorporated in Washington, DC.

11. 51$.(&.++;A)'"'?"%;)$(<);&$++)%"-01$%1=)0;")$(<)"(Q*=)1$(<;)C.&3.()&3")/*0(&.";)

where the challenged permits authorize the planting and flowering of the genetically engineered

Eucalyptus hybrid t%""G))51$.(&.++;A)'"'?"%;)$(<);&$++)0;")$(<)"(Q*=)&3";")1$(<;)+*%)$)D$%."&=)*+)

purposes including hiking, fishing, hunting, camping, photographing scenery and wildlife, and

engaging in other vocational, scientific, and recreational activities. PlaintiffsA members and staff

derive recreational, inspirational, religious, scientific, educational, and aesthetic benefit from

their activities on these lands. 51$.(&.++;A)'"'?"%;)*?&$.()$";&3"&./)$(<)%"/%"$&.*($1)"(Q*='"(&)

from unimpaired natural habitats and native species. 51$.(&.++;A)'"'?"%;)$(<);&$++).(&"%";&>)0;")

and enjoyment of these lands includes the numerous threatened and endangered species that

reside in this region, the opportunity to observe and photograph these imperiled species in the

wild, and the knowledge that this region is still able to support and recover these threatened and

endangered species. 51$.(&.++;A)'"'?"%;)$(<);&$++).(&"(<)&*)/*(&.(0")&*)0;")$(<)"(Q*=)&3";")

lands frequently and on an ongoing basis in the future, including this summer and fall.

12. Plaintiffs have members who own land in or near the counties where the

challenged permits authorize the planting and flowering of the genetically engineered Eucalyptus

hybrid tree. These members are concerned about the potential spread of this experimental

Eucalyptus hybrid onto or near their property, as well as the risk that this Eucalyptus hybrid will

become an invasive species within the counties where it is being planted and allowed to flower.


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These members are also concerned that this hybrid may interbreed with the already-naturalized

Eucalyptus grandis, making the Eucalyptus grandis more likely to spread over a wider area due

to the introduced cold-tolerant gene.

13. Plaintiffs submitted numerous and extensive comments on the ArborGen permits

for the Eucalyptus hybrid for which Defendants provided public notice and allowed public

/*''"(&G))51$.(&.++;A)/*''"(&;)"T#%";;)$(<)"T#1$.()&3".%)/*(/"%(;)$(<)*##*;.&.*()&*)

!"+"(<$(&;A)$##%*D$1)*+)&3"),%?*%@"()#"%'.&;G))Plaintiffs provided Defendants with 60 days

written notice of the ESA claims and violations. 16 U.S.C. § 1540(g). Plaintiffs exhausted all

available administrative remedies.

14. The interests of Plaintiffs and their members and staff have been and will

continue to be adversel=)$++"/&"<)?=)!"+"(<$(&;A)$0&3*%.V"<)#1$(&.(-)$(<)+1*C"%.(-)*+)&3.;)

experimental, genetically engineered Eucalyptus hybrid at multiple, undisclosed sites across the

;*0&3"$;&"%()J(.&"<)8&$&";G))51$.(&.++;A).(Q0%.";).(/10<")&3")%.;W)&3$&)&3.;)Eucalyptus hybrid will

escape outside of the experimental plots and become an invasive species in this region, or

contribute to invasiveness of other Eucalyptus species. Plaintiffs injuries also include the

adverse affects of this Eucalyptus hybrid on wildlife, including threatened and endangered

species; the extensive water used by this Eucalyptus hybrid as compared to native forests in the

region and the related impacts to aquatic and riparian species; the increased fire risk associated

with this Eucalyptus hybrid; and the unknown risks associated with allowing the widespread

planting and flowering of a genetically engineered tree on numerous sites scattered across seven

states in the southeastern United States.

15. 51$.(&.++;)$(<)&3".%)'"'?"%;A)$(<);&$++;A).(Q0%."; would be redressed by the relief

sought.


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16. Defendant Animal and Plant Health Inspection Service is an agency within the

United States Department of Agriculture. The Animal and Plant Health Inspection Service

signed and approved the decisions and permits that are challenged herein. The United States

Department of Agriculture is responsible for overseeing the decisions and actions of the Animal

and Plant Health Inspection Service.

FACTUAL BACKGROUND

17. The genus Eucalyptus includes over 700 species. Ecualyptus is native to

Australia, with the exception of a few species that are native to the Timor Islands and Indonesia.

There are no wild relatives of Eucalyptus that are native in the United States.

18. Certain species of Eucalyptus have been planted as ornamental species in the

extreme southern United States, where mild winters will allow some Eucalyptus species to grow.

19. In the United States, Eucalyptus is only grown in commercial plantations in

central and southern Florida, and in Hawaii. There are plantations of the species Eucalyptus

grandis currently grown in south central Florida as short rotation crops for biomass production

and for mulch production. These trees are planted in areas where severe freezing events are rare.

20. The genetically engineered Eucalyptus species at issue in this case is a hybrid of

Eucalyptus grandis and Eucalyptus urophylla 23"%".($+&"%)4Eucalyptus 3=?%.<9:G))S3")Eucalyptus

hybrid was genetically engineered in an attempt to increase tolerance to cold temperatures,

decrease fertility, and decrease lignin biosynthesis.

21. In 2005, APHIS granted permit 05-072-03m, which authorized ArborGen to

import the Eucalyptus hybrid from New Zealand to the United States. APHIS did not prepare an

EIS or EA prior to granting the permit. APHIS did not provide public notice or an opportunity

for public comment prior to granting the permit. APHIS did not consult with the United States


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U.;3)$(<)X.1<1.+")8"%D./")24UX89:)pursuant to the ESA prior to granting the permit.

22. In 2005, APHIS granted permit 05-256-03n, authorizing ArborGen to plant the

Eucalyptus hybrid on 1.1 acre at an undisclosed site in Baldwin County, Alabama. This permit

did not allow the flowering of the Eucalyptus hybrid. APHIS did not prepare an EIS or EA prior

to granting the permit. APHIS did not provide public notice or an opportunity for public

comment prior to granting the permit. APHIS did not request from FWS whether any threatened

or endangered species may be present in the area of the proposed action, did not prepare a

biological assessment to determine whether any threatened or endangered species may be

affected by the proposed action, and did not consult with FWS prior to granting the permit.

23. In June, 2007, APHIS granted permit 06-325-111r, which authorized ArborGen to

allow the flowering of the Eucalyptus hybrid at the 1.1 acre site in Baldwin County, Alabama.

APHIS prepared an EA prior to granting permit 06-325-111r, which considered the no action

alternative along with two action alternatives. AHPIS received 270 comments during a 30-day

public comment period on the EA, including a petition opposed to granting the permit that

included 5,495 signatures. APHIS concluded the permit would not result in significant

environmental impacts and thus did not prepare an EIS prior to granting the permit. APHIS did

not request from FWS whether any threatened or endangered species may be present in the area

of the proposed action, did not prepare a biological assessment to determine whether any

threatened or endangered species may be affected by the proposed action, and did not consult

with FWS prior to granting the permit.

24. APHIS subsequently granted an amendment to permit 06-325-111r, which

authorized the flowering of the Eucalyptus hybrid on an additional 5.1 acres at the same location.

APHIS did not prepare an EIS or supplemental EA prior to granting the amendment to the


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permit, and did not provide public notice or an opportunity for public comment prior to granting

the amendment. Prior to granting the amendment, APHIS did not request from FWS whether

any threatened or endangered species may be present in the area of the proposed action, did not

prepare a biological assessment to determine whether any threatened or endangered species may

be affected, and did not consult with FWS.

25. In April, 2008, APHIS granted permit 08-039-102rm, which authorized ArborGen

to plant the Eucalyptus hybrid at 15 undisclosed sites in seven states (Alabama, Florida, Georgia,

Louisiana, Mississippi, South Carolina, and Texas). This permit did not authorize ArborGen to

allow the flowering of the Eucalyptus hybrid at these sites. APHIS did not prepare an EIS or EA

prior to granting the permit. APHIS did not provide public notice or an opportunity for public

comment prior to granting the permit. APHIS did not request from FWS whether any threatened

or endangered species may be present in the area of the proposed action, did not prepare a

biological assessment to determine whether any threatened or endangered species may be

affected by the proposed action, and did not consult with FWS prior to granting the permit. This

permit was later amended or otherwise expanded to allow the planting of the Eucalyptus hybrid

at 28 sites.

26. In June, 2008, APHIS granted permit 08-151-101r, which authorized ArborGen to

plant the Eucalyptus hybrid on 1.4 acres in Highlands County, Florida. This permit authorized

ArborGen to allow the flowering of the Eucalyptus hybrid at this site. APHIS did not prepare an

EIS or EA prior to granting the permit. APHIS did not provide public notice or an opportunity

for public comment prior to granting the permit. APHIS did not request from FWS whether any

threatened or endangered species may be present in the area of the proposed action, did not

prepare a biological assessment to determine whether any threatened or endangered species may


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be affected by the proposed action, and did not consult with FWS prior to granting the permit.

27. In 2008, ArborGen petitioned APHIS to request that the Eucalyptus hybrid be

granted deregulated ;&$&0;G)),%?*%@"(A;)<"%"-01$&.*()#"&.&.*().;)/0%%"(&1=)#"(<.(-)?"+*%"),5678G))

,;);&$&"<)?=),%?*%@"(>)&3.;)#"&.&.*().;)4$);&"#)&*C$%<;)+0&0%")/*''"%/.$1);$1";G9


28. In April, 2009, APHIS granted permit 09-070-101rm, which authorized ArborGen

to plant the Eucalyptus hybrid on 0.3 acres in Highlands County, Florida and 0.3 acres in Marion

County, Florida. APHIS did not prepare an EIS or EA prior to granting the permit. APHIS did

not provide public notice or an opportunity for public comment prior to granting the permit.

APHIS did not request from FWS whether any threatened or endangered species may be present

in the area of the proposed action, did not prepare a biological assessment to determine whether

any threatened or endangered species may be affected by the proposed action, and did not

consult with FWS prior to granting the permit.

29. In May, 2010, APHIS granted permits 08-014-101rm and 08-011-106rm, which

authorized the planting of the Eucalyptus hybrid on 28 sites in seven states (Alabama, Florida,

Georgia, Louisiana, Mississippi, South Carolina, and Texas), totaling 330 acres. These permits

allow the flowering of the Eucalyptus hybrid on 27 of these 28 sites. Many of these sites are the

same sites for which planting was authorized by permit 08-039-102rm. The sites range from 0.5

to 20 acres in size, with a proposed planting density of 300-600 trees per acre (or up to

approximately 200,000 trees). If the permits are renewed, which ArborGen has indicated it will

do, the trees will stay in the ground until maturity or when normally harvested, between 7-9

years. APHIS did not request from FWS whether any threatened or endangered species may be

present in the area of the proposed action, did not prepare a biological assessment to determine



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whether any threatened or endangered species may be affected by the proposed action, and did

not consult with FWS prior to granting the permits.

30. APHIS prepared an EA prior to granting permits 08-014-101rm and 08-011-

MYO%'G))S3")E,)/*(;.<"%"<)*(1=)&C*)$1&"%($&.D";Z))&3")4(*)$/&.*(9)$1&"%($&.D">)$(<)&3")4#%"+"%%"<)

$1&"%($&.D">9)C3./3)C*01<)-%$(&)?*&3)*+)&3")%"B0";&"<)#"%'.&;G)),5678)%"/".D"<)$##%*T.'$&"1=)

12,500 comments on the EA, with 45 respondents in favor of issuing the permits and 12,462

respondents opposed. APHIS chose the preferred a1&"%($&.D">);.-("<)&3")4+.(<.(-)*+)(*)

;.-(.+./$(&).'#$/&9)$(<)4<"/.;.*()(*&./"9)*()[$=)M\>)\YMY>)$(<)-%$(&"<)&3")#"%'.&;G

31. The EA does not disclose the location of the 28 sites. ArborGen continues to

maintain that these sites are confidential business information.

32. Plaintiffs submitted detailed comments on the EA, explaining their concerns and

opposition to the granting of these permits.

33. On February 18, 2010, the Georgia Department of Natural Resources, Wildlife

Resources Division provided comments on the EA. The Department recommended that that

,%?*%@"(A;)#"%'.&)%"B0";&)?")<"(."<>)$(<)&3$&)$)+011)E78)?")#%"#$%"<)+*%)&3")#%*#*;"<)$/&.*(G))

S3.;).;)?"/$0;")&3")!"#$%&'"(&)3$;)4;"%.*0;)/*(/"%(;)$?*0&)#*&"(&.$1).'#$/&;)*()3=<%*1*-=>);*.1)

chemistry, native biodiversity, and ecosystem functions, regardless of whether this nonnative

3=?%.<)&0%(;)*0&)&*)?").(D$;.D").()$)#1$(&$&.*();"&&.(-G9)),;);&$&"<)?=)&3")!"#$%&'"(&> Eucalyptus

#1$(&$&.*(;)4C.11)?")"T&%"'"1=).(3*;#.&$?1")"(D.%*('"(&;)+*%)($&.D")+1*%$)$(<)+$0($G9))[*%"*D"%>)

noting the high water use for Eucalyptus plantations, the Department expressed concern

regarding the increased potential for significant impacts on water resources and aquatic

communities.


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34. The Florida Exotic Pest Plant Council is an organization of professional land

managers, researchers, and consultants, including agency and university scientists.

http://www.fleppc.org/ The Council submitted comments that expressed 4serious concerns9

$?*0&),%?*%@"(A;)#%*#*;$1)$(<)&3")E,G))S3")K*0(/.1 commented that its primary concern is

whether the Eucalyptus hybrid will become invasive across some or all of the intended planting

range. Noting that smaller-scale plantings of this Eucalyptus hybrid have only been in place for

a few years, the Council commented that this &.'"+%$'").;).(;0++./."(&)&*)0(<"%;&$(<)&3");#"/.";A)

potential invasiveness. As noted by the Council, however, Eucalyptus grandis, which is one of

the parent species of this hybrid, is known to be invasive in other habitats. The Council

commented that an EIS should be prepared before such large field trials are approved. The

Council further recommended that any approved alternative exclude Florida from the

experimental trial in order to reduce the risk of increasing cold tolerance in the Eucalyptus

species that have already escaped.

35. According to &3")J(.D"%;.&=)*+)U1*%.<$A;)K"(&"%)+*%),B0$&./)$(<)7(D$;.D")51$(&;,

Eucalyptus grandis, which is one of the parent species of the Eucalyptus hybrid and presently

found within central and southern Florida, is predicted to be invasive and thus not recommended.

http://plants.ifas.ufl.edu/assessment/spreadsheets/invasive_not_recommended_central.xls

36. The United States Forest Service reviewed the materials provided by ArborGen

and the relevant science on water use by Eucalyptus, and prepared an assessment of impacts on

hydrology. According to the Forest Service, Eucalyptus hybrid plantations planted in the

southeastern United States are likely to use water at a rate of at least twice that of stands of

native forests in the region; the conversion to Eucalyptus hybrid plantations would likely reduce

stream flows 20% relative to traditional pine plantations; the Eucalyptus hybrid has the potential


http://www.fleppc.org/

http://plants.ifas.ufl.edu/assessment/spreadsheets/invasive_not_recommended_central.xls

14

to impact both surface water and groundwater hydrology; and if the Eucalyptus hybrid invades

native forests, water use in these stands will likely increase.

37. Dr. Donald Winslow, Ph.D., Director of Conservation Biology at St. George

University, submitted comments on the ArborGen permits and EA. Dr. Winslow noted that

Eucalyptus grandis has already become established in several counties in Florida, and that the

experimental cold-tolerance gene in the Eucalyptus hybrid may facilitate the spread of this

species in other southeastern states. Dr. Winslow also commented that Eucalyptus trees produce

natural toxins that may cause decline in desirable insects and insectivorous bird species.

Moreover, direct mortality of songbirds has been documented in California Eucalyptus stands as

a result of the sticky gum exuded by these trees. Additionally, the large-scale planting of the

Eucalyptus hybrid may have significant hydrological impacts, including negative impacts on

endangered aquatic species such as fish and mussels.

38. The Union of Concerned Scientists submitted comments on the earlier EA that

APHIS prepared for permit 06-325-111r. As stated by the Union of Concerned Scientists, the

permit would allow flowering and possible seed development in a genetically engineered forest

tree species, which would set precedent for risk assessment. As noted by the Scientists, forest

tree species pose a risk of gene flow beyond the test site by outcrossing or seed escape, and may

have far-ranging impacts if they escape and spread. The Eucalyptus hybrid may also become

invasive, which would seriously disrupt native ecosystems, as has been the case with several

Eucalyptus species introduced into California.

39. Additional comments were submitted by numerous conservation organizations,

.(/10<.(-)51$.(&.++;>)$;)C"11)$;)&3*0;$(<;)*+).(<.D.<0$1;)C3*)C"%")*##*;"<)&*),%?*%@"(A;)#"%'.&)

requests.


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40. The permits issued by APHIS to ArborGen are three year permits, but can be

renewed for an additional three years if ArborGen wishes to continue the experiments.

41. Concurrent with the planting of genetically engineered Eucalyptus, in 2005, the

United States Department of Agri/01&0%"A; Office of the Inspector General (OIG) conducted an

audit covering GMO field trials conducted in 2002 and 2003, finding numerous basic

deficiencies in APHIS oversight. H7@)2\YYI:G))4,0<.&)%"#*%&Z),(.'$1)$(<)51$(&)6"$1&3)

Inspection Service con&%*1;)*D"%).;;0$(/")*+)-"("&./$11=)"(-.(""%"<)*%-$(.;')%"1"$;")#"%'.&;>9)

Audit 50601-8-Te, USDA, Office of Inspector General, Southwest Region, December 2005.

http://www.usda.gov/oig/webdocs/50601-08-TE.pdf

42. A 2008 Government Accountability Office study analyzed the numerous

contamination incidences from field trials of GMOs in the past decade, concluded that 4&3")"$;")

with which genetic material from crops can be spread makes future releases likely,9)and

recommended that APHIS address the unintended release of GMOs and coordinate strategies for

post commercialization monitoring. http://www.gao.gov/new.items/d0960.pdf

43. With the adoption of the 2008 Farm Bill, Congress mandated that APHIS

4.'#%*D")&3")'$($-"'"(&)$(<)*D"%;.-3&9)*+)@[H)field trials (§ 10204), implement measures

*0&1.("<).()&3")$-"(/=A;)4]";;*(;)]"$%("<9)2006 document prepared in the wake of the 2006

^].?"%&=)].(WA GE rice contamination incident, and adopt a series of other new measures to

safeguard against transgenic contamination. Pub. L. No. 110-246, Tit. X § 10204, 122 Stat.

1651, 2105 (2008).

44. The states affected by the Eucalyptus hybrid permits approved by APHIS are

home to hundreds of threatened and endangered species. After California and Hawaii, the two

states with the highest number of threatened and endangered species are Florida (114 species)


http://www.usda.gov/oig/webdocs/50601-08-TE.pdf

http://www.gao.gov/new.items/d0960.pdf

16

and Alabama (116 species). In addition, there are 93 threatened and endangered species in

Texas, 71 listed species in Georgia, 42 listed species in both Mississippi and South Carolina, and

29 listed species in Louisiana.

STATUTORY AND REGULATORY BACKGROUND

45. NEPA is our national charter for protection of the environment. 40 C.F.R. §

MIYYGM2$:G))S3")#0%#*;")*+)FE5,).;)&*)"(;0%")4&3$&)&3")$-"(/=>).()%"$/3.(-).&;)<"/.;.*(>)C.11)

have available, and will carefully consider, detailed information concerning significant

environmental impacts; it also guarantees that the relevant information will be made available to

the larger [public] audience that may also play a role in both the decisionmaking process and

.'#1"'"(&$&.*()*+)&3$&)<"/.;.*(G9))Robertson v. Methow Valley Citizens Council, 490 U.S. 332,

349 (1989).

46. 4FE5,).'#*;";)$)#%*/"<0%$1)%"B0.%"'"(&)&3$&)$()$-"(/=)'0;&)/*(&"'#1$&")&3")

"(D.%*('"(&$1).'#$/&;)*+).&;)$/&.*(;G9))Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1149

(9th Cir. 1998); see 42 U.S.CG)L)_PP\G))4FE5,)#%*/"<0%";)'0;&).(;0%")&3$&)"(D.%*('"(tal

information is available to public officials and citizens before decisions are made and before

$/&.*(;)$%")&$W"(G9))_Y)KGUG`G)L)MIYYGM2?:G))S3").(+*%'$&.*().()$()FE5,)$($1=;.;)'0;&)?")*+)

high quality, as accurate scientific analysis, expert agency comments, and public scrutiny are

essential to implementing NEPA. Id.

47. FE5,)";&$?1.;3";)&3%"")4/$&"-*%.";9)*+)$-"(/=)$/&.*(G))U.%;&>)#%*#*;$1;)&3$&)

normally require an EIS should immediately trigger preparation of an EIS. 40 C.F.R. §

1501.4(a)(1). Second, the agency may designate types of actions that normally do not require the

#%"#$%$&.*()*+)$()E78)$(<)/$()?")4/$&"-*%./$11=)"T/10<"<G9))_Y)KGUG`G)LL)MIYaG_>)MIYMG_2$:2\:G))

If a proposed action fits within a categorical exclusion, agencies must still consider whether there


17

are extraordinary circumstances that would require preparation of an EA or EIS. 40 C.F.R. §

1508.4. Third, any action that does not fall into the first or second category should be evaluated

in an EA, which must analyze whether impacts from the proposed action may be significant and,

therefore, require an EIS. 40 C.F.R. §§ 1501.4(b), 1508.9.

48. Agencies must make diligent efforts to involve the public in preparing and

implementing their NEPA procedures. 40 C.F.R. § 1506.6(a).

49. Agencies must integrate NEPA into the planning process at the earliest possible

time to insure that planning and decisions reflect environmental values. 40 C.F.R. § 1501.2; see

also 40 C.F.R. § 1502.5. Until an agency issues its final decision on a proposal, no action

concerning the proposal may be taken that would have an adverse environmental impact or limit

the choice of reasonable alternatives. 40 C.F.R. § 1506.1(a).

50. Agencies must study, develop and describe appropriate alternatives to

recommended courses of action in any proposal which involves unresolved conflicts concerning

alternatives uses of available resources. 42 U.S.C. § 4332(2)(E); 40 C.F.R. § 1501.2(c); see also

_Y)KGUG`G)L)MIY\GM_)2<";/%.?.(-)&3")$1&"%($&.D";);"/&.*()$;)&3")43"$%&9)*f an EIS).

51. Agencies have a continuing duty to supplement NEPA documents. See 40 C.F.R.

§ 1502.9(c).

52. NEPA established the Council on Environmental Quality and charged CEQ with

the duty of overseeing the implementation of NEPA. See 42 U.S.C. §§ 4321, 4344. The

regulations promulgated by CEQ, 40 C.F.R. §§ 1500-08, implement the directives and purpose

*+)FE5,>)$(<)4b&c3")#%*D.;.*(;)*+)bFE5,c)$(<)bKEdc)%"-01$&.*(;)'0;&)?")%"$<)&*-"&3"%)$;)$)

whole in order to comply with the spirit and letter of t3")1$CG9 40 C.F.R. § 1500.3. KEdA;)

regulations are applicable to and binding on all federal agencies. 40 C.F.R. §§ 1500.3, 1507.1;


18

see, e.g., Hodges v. Abraham, 300 F.3d 432, 438 (4th Cir. 2002). Among other requirements,

KEdA;)%"-01$&.*(;)'$(<$&")&3$&)+"<"%$1)$-"(/.";)$<<%";;)$11)4%"$;*($?1=)+*%";""$?1"9)

environmental impacts of their proposed programs, projects, and regulations. See 40 C.F.R. §§

1502.4, 1508.8, 1508.18, & 1508.25.

53. The United States Department of Agriculture has promulgated additional NEPA

regulations to assure early and adequate consideration of environmental factors in APHIS

planning and decisionmaking. 7 C.F.R. § 372.1. According to the APHIS NEPA regulations,

the goal of timely, relevant environmental analysis will be secured principally by adhering to the

CEQ NEPA regulations, especially the provisions pertaining to timing, integration and scope of

analysis. Id.

54. The APHIS NEPA regulations explain that actions normally requiring an EIS

typically involve an entire program or a substantial program component, and are characterized by

their broad scope and potential effect. 7 C.F.R. § 372.5(a). Actions requiring an EA, by

contrast, generally concern a more discrete program component and are characterized by their

limited scope and potential effect. 7 C.F.R. § 372.5(b). For actions requiring an EA,

methodologies, strategies, and techniques employed to deal with the issues at hand are seldom

new or untested, and alternatives means of dealing with those issues are well established. Id.

55. The APHIS NEPA regulations include a list of 4categorically excluded9 actions,

but recognize there are a number of exceptions, including where the categorically excluded

$/&.*()4'$=)3$D")&3")#*&"(&.$1)&*)$++"/&)^;.-(.+./$(&1=A)&3")B0$1.&=)*+)&3")^30'$()"(D.%*('"(&>A9)

such as when the action is added to other past, present and reasonably foreseeable actions that

have the potential for significant environmental impacts, or when a confined field release of

genetically engineered organisms involve new species or organisms or novel modifications that


19

raise new issues. 7 C.F.R. § 372.5(c-d).

56. Under the Plant Protection Act and its implementing regulations, GMOs are

clas;.+."<)$;)4%"-01$&"<)$%&./1";9)C3./3)/$((*&)?")4.(&%*<0/"<9 into the environment except upon

specific notification or permit. See 7 C.F.R. §§ 340.0-340.4. 7(&%*<0/&.*().;)<"+.("<)$;)4&o move

into or through the United States, to release into the environment, to move interstate, or any

attempt thereat.9)e)KGUG`G)§ 340.1.

57. In relevant part, the 2008 Farm Bill created new statutory directives for APHIS

regarding the oversight of GMO field trials. Food, Conservation, and Energy Act of 2008, Pub.

L. No. 110-246, Tit. X § 10204, 122 Stat. 1651, 2105 (2008). Congress mandated that APHIS

&$W")$/&.*()&*).'#1"'"(&)&3";")("C)<.%"/&.D";)4b(cot later than 18 months after the date of

enactment of this ActG9))Id.

58. S3")E(<$(-"%"<)8#"/.";),/&)24E8,9:).;)&3")'*;&)/*'#%"3"(;.D")1"-.;1$&.*()+*%)

the preservation of endangered species ever enacted by any nation.

59. Section 7(a)(1) of the ESA requires all federal agencies to utilize their authorities

in furtherance of the purposes of the ESA by carrying out programs for the conservation of

endangered species.

60. Section 7(a)(2) of the ESA requires federal agencies, in consultation with FWS, to

insure that any action authorized, funded, or carried out by agency is not likely to jeopardize the

continued existence of any threatened or endangered species, or result in the destruction or

adverse modification of the critical habitat of such species. 16 U.S.C. § 1536(a)(2).

61. Section 7(a)(2) contains both procedural and substantive requirements. The

procedural requirements require all federal agencies to assess the effects of their actions on

endangered and threatened species in such areas where such species may be present.


20

62. 4,/&.*(9).;)?%*$<1=)<"+.("<)by the ESA to include all activities or programs of

any kind authorized, funded, or carried out by federal agencies, including the granting of permits

and actions directly or indirectly causing modifications to the land, water, or air. 50 C.F.R. §

402.02.

63. For each federal action, the agency must request from FWS whether any listed or

proposed species may be present in the area of the agency action. 16 U.S.C. § 1536(c)(1); 50

C.F.R. § 402.12. If listed or proposed species may be present, the agency must prepare a

4?.*1*-./$1)$;;";;'"(&9)&*)<"&"%'.(")Chether the listed species is likely to be adversely affected

by the proposed action. Id.

64. If an agency determines that a proposed action may affect any listed species or

critical habitat, the agency must engage in formal consultation with FWS. 50 C.F.R. § 402.14.

The only exception is when the agency and FWS agree in writing that the agency action

is not likely to affect any listed species or critical habitat. Id.

65. Both direct and indirect agency actions are subject to consultation. The

agency must assess the direct and indirect effects of an action together with the effects of

other activities that are interrelated or interdependent with the proposed action. 50 C.F.R.

§ 402.02. ESA consultation must consider all phases and the entire scope of the proposed

agency action.

66. The threshold for formal consultation under the ESA is very low. Any possible

effect, whether beneficial, benign, adverse, or of an undetermined character, triggers the formal

consultation requirement. Once an agency discovers that a proposed action crosses the low

&3%";3*1<)*+)4#*;;.?1")"++"/&>9).&)'0;&)+*%'$11=)/*(;01&)C.&3)UX8G


21

67. To complete formal consultation, FWS must provide the action agency with a

4?.*1*-./$1)*#.(.*(9)"T#1$.(.(-)3*C)&3")#%*#*;"<)$/&.*()C.11)$++"/&)&3")1.;&"<);#"/.";)*%)3$?.&$&G))

16 U.S.C. § 1536(b); 50 C.F.R. § 402.14. 7+)UX8)/*(/10<";)&3$&)&3")#%*#*;"<)$/&.*()4C.11)

Q"*#$%<.V")&3")/*(&.(0"<)"T.;&"(/"9)*+)$)1.;&"<);#"/.";>)&3")?.*1*-./$1)*#.(.*()'0;&)*0&1.(")

4%"$;*($?1")$(<)#%0<"(&)$1&"%($&.D";G9))MO)JG8GKG)L)MIPO2?:2P:2,:G))7+)&3")?.*1*-./$1)*#.(.*()

concludes that the action is not likely to jeopardize the continued existence of a listed species,

and will not result in the destruction or adverse modification of critical habitat, FWS must

#%*D.<")$()4.(/.<"(&$1)&$W");&$&"'"(&>9);#"/.+=.(-)&3")$'*0(&)*%)"T&"(&)*+);0ch incidental taking

on the listed ;#"/.";>)$(=)4%"$;*($?1")$(<)#%0<"(&)'"$;0%";9)&3$&)UX8)/*(;.<"%;)("/";;$%=)*%)

$##%*#%.$&")&*)'.(.'.V");0/3).'#$/&>)$(<);"&&.(-)+*%&3)&3")4&"%';)$(<)/*(<.&.*(;9)&3$&)'0;t be

complied with by APHIS to implement those measures. 16 U.S.C. § 1536(b)(4); 50 C.F.R. §

402.14(i).

68. During consultation with FWS, the action agency is prohibited from making any

irreversible or irretrievable commitment of resources with respect to the agency action which

may foreclose the formulation or implementation of any reasonable and prudent alternative

measures. 16 U.S.C. § 1536(d).

69. Section 9 of the ESA and its implementing regulations prohibit the unauthorized

4&$W"9)*+)1.;&"<);#"/.";. 16 U.S.C. § 1538(a)(1); 16 U.S.C. § 1533(d); 50 KGUG`G)L)MeGPMG))4S$W"9)

is defined broadly to include harming, harassing, trapping, capturing, wounding or killing a

protected species either directly or by degrading its habitat. See 16 U.S.C. § 1532(19). Taking

that is in compliance with the terms and conditions specified in a biological opinion is not

considered a prohibited taking under Section 9 of the ESA. 16 U.S.C. § 1536(o)(2).


22

FIRST CLAIM FOR RELIEF

Defendants Violated NEPA in Approving Permits 05-072-03m, 08-039-102rm, 08-151-101r, and 09-070-101rm, and in Significantly Amending Permit 06-325-111r 70. Plaintiffs hereby incorporate by reference all preceding paragraphs.

71. Defendants failed to prepare either an EA or EIS prior to approving permits 05-

072-03m, 08-039-102rm, 08-151-101r, and 09-070-101rm, in violation of NEPA.

72. Defendants failed to prepare a supplemental EA or EIS prior to significantly

amending permit 06-325-111r, in violation of NEPA.

73. Defendants failed to involve the public and allow public comment prior to

approving permits 05-072-03m, 08-039-102rm, 08-151-101r, and 09-070-101rm, in violation of

NEPA.

74. Defendants failed to consider the presence of extraordinary circumstances, the

potential significant environmental impacts, and other relevant factors prior to approving permits

05-072-03m, 08-039-102rm, 08-151-101r, and 09-070-101rm, in violation of NEPA.

75. !"+"(<$(&;A)$##%*D$1)*+)#ermits 05-072-03m, 08-039-102rm, 08-151-101r, and

09-070-101rm>)$(<)!"+"(<$(&;A)$##%*D$1)*+)&3");.-(.+./$(&)$'"(<'"(&)&*)#"%'.&)YO-325-111r, is

arbitrary, capricious, an abuse of discretion, not in accordance with law, and without observance

of procedure required by law. 5 U.S.C. § 706(2). Permits 05-072-03m, 08-039-102rm, 08-151-

101r, 09-070-101rm, and the amendment of permit 06-325-111r, should therefore by held

unlawful and set aside. Id.

SECOND CLAIM FOR RELIEF

Defendants Violated NEPA in Approving Permits 08-011-106rm and 08-014-101rm

76. Plaintiffs hereby incorporate by reference all preceding paragraphs.

77. DefendantsA)E,)prepared for permits 08-011-106rm and 08-014-101rm violates


23

NEPA for at least the following reasons:

a) The EA fails to consider a reasonable range of alternatives; b) The EA fails to consider the cumulative impacts of the proposed action along with all past, present and reasonably foreseeable actions, including the *&3"%)%"1$&"<)#"%'.&;)$(<),%?*%@"(A;)<"%"-01$&.*()#"&.&.*(N c) The EA fails to adequately address the potential invasiveness and spread of the Eucalyptus hybrid over time; d) The EA fails to adequately address the potential impacts to wildlife, water quantity and quality, hydrology, and fire risk; e) The EA fails to support its conclusions with hard data and objective analysis; and f) The EA fails to disclose critical information necessary to allow for

meaningful public comment. 78. Defendants were required to prepare an EIS for permits 08-011-106rm and 08-

014-101rm for at least the following reasons:

a) Permits 08-011-106rm and 08-014-101rm, along with the other related #"%'.&;)$(<),%?*%@"(A;)<"%"-01$&.*()#"&.&.*(>)'$=)/0'01$&.D"1=)%";01&).() significant environmental impacts; b) The potential environmental effects of approving permits 08-011-106rm and 08-014-101rm are highly controversial; c) The possible environmental effects of approving permits 08-011-106rm and 08-014-101rm are highly uncertain and involve unknown risks; d) The approval of permits 08-011-106rm and 08-014-101rm may establish a precedent for future actions with significant effects; and e) The approval of permits 08-011-106rm and 08-014-101rm may adversely

affect endangered or threatened species or their habitat. 79. !"+"(<$(&;A)$##%*D$1)*+)#ermits 08-011-106rm and 08-014-101rm is arbitrary,

capricious, an abuse of discretion, not in accordance with law, and without observance of

procedure required by law. 5 U.S.C. § 706(2). Permits 08-011-106rm and 08-014-101rm should


24

therefore be held unlawful and set aside. Id.

THIRD CLAIM FOR RELIEF

Defendants Violated NEPA By Failing to Consider Connected, Cumulative, and Similar Actions .()$)8.(-1")E78>)$(<)?=)f%"$W.(-),%?*%@"(A;)8&%$&"-=)7(&*)8'$11"%)K*'#*("(&;)5$%&; 80. Plaintiffs hereby incorporate by reference all preceding paragraphs.

81. NEPA requires connected, cumulative, and similar actions to be considered

together in a single EIS. 40 C.F.R. § 1508.25. Connected actions are those that are closely

related and should therefore be discussed in the same EIS. 40 C.F.R. § 1508.25(1). Cumulative

actions are those when viewed with other proposed actions have cumulatively significant impacts

and should therefore be discussed in the same EIS. 40 C.F.R. § 1508.25(2). Similar actions are

those having similarities that provide a basis for evaluating their environmental consequences

together in a single EIS, such as common timing or geography. 40 C.F.R. § 1508.25(3).

Similarly, an agency cannot avoid a significance determination and preparation of an EIS by

breaking an action into small component parts. 40 C.F.R. § 1508.27(b)(7).

82. There is no question that ArborGen has an overall strategy for introducing its

Eucalyptus hybrid throughout much of the southeastern United States. In just five years,

ArborGen has requested a permit to import this hybrid into the United States, has requested

seven separate permits to plant and allow to flower its experimental hybrid at over 30 sites across

seven states, and has petitioned for this Eucalyptus hybrid to be deregulated. All permits,

requests, and petitions are from the same company, to the same agency, for the same genetically

engineered hybrid species, for future use in the same region of the county.

83. !"+"(<$(&;)+$.10%")&*)/*(;.<"%)&3")*D"%$11)/0'01$&.D").'#$/&;)*+),%?*%@"(A;)

permits, petition, and strategy within a single EIS violates NEPA. See 40 C.F.R. § 1508.25.

84. Defendants consideration of each ArborGen permit and petition separately,


25

C.&3*0&)/*(;.<"%$&.*()*+)&3")*D"%$11)/0'01$&.D")"++"/&;)*+)&3")/*'#$(=A;)*D"%$11);&%$&"-=>)

violates NEPA. See 40 C.F.R. § 1508.25; 40 C.F.R. § 1508.27(b)(7).

85. !"+"(<$(&;)<"/.;.*()&*)/*(;.<"%),%?*%@"(A;)#"%'.&;)$(<)#"&.&.*()#."/"'"$1>)

either in individual EAs or without NEPA review altogether, violates NEPA, and constitutes

arbitrary, capricious, agency action. 5 U.S.C. § 706(2).

FOURTH CLAIM FOR RELIEF

Defendants Are Violating The Procedural and Substantive Mandates Of The Food, Conservation, And Energy Act Of 2008 By Failing To Implement And Apply Containment Measures In Approving The GMO Field Testing Permits In This Action 86. Plaintiffs hereby incorporate by reference all preceding paragraphs.

87. As applied here and in general, Defendants have failed to implement the

directives of the 2008 Farm Bill by the statutory deadline of 18 months since its enactment. Pub.

L. No. 110-246, Tit. X § 10204, 122 Stat. 1651, 2105 (2008).

88. As applied here and in general, Defendants have failed to apply any of the

enhanced field testing safeguards mandated by the 2008 Farm Bill to its permit approval process.

89. Defendants failure to implement the directives of the 2008 Farm Bill and/or apply

any of the enhanced field testing safeguards constitutes agency action unlawfully withheld and

unreasonably delayed, 5 U.S.C. § 706(1) and is arbitrary, capricious, an abuse of discretion, and

not in accordance with law, 5 U.S.C. § 706(2).

FIFTH CLAIM FOR RELIEF

Defendants Violated the ESA in Approving Permits 06-325-111r, 08-151-101r, 08-039-102rm, 08-014-101rm, 08-011-106rm, and 09-070-101rm 90. Plaintiffs incorporate by reference all preceding paragraphs.

91. Prior to issuing permits 06-325-111r, 08-151-101r, 08-039-102rm, 08-014-101rm,

08-011-106rm, and 09-070-101rm, APHIS failed to insure, in consultation with FWS, that the


26

authorization and implementation of the ArborGen Eucalyptus hybrid permits is not likely to

jeopardize the continued existence of any threatened or endangered species or result in the

destruction or adverse modification of the critical habitat of such species, in violation of the

ESA. 16 U.S.C. § 1536(a)(2).


08-011-106rm, and 09-070-101rm, APHIS failed to request from FWS whether any threatened or

endangered species, or designated critical habitat, may be present within or near the areas of the

proposed actions, in violation of the ESA. 16 U.S.C. § 1536(c)(1); 50 C.F.R. § 402.12.


08-011-106rm, and 09-070-101rm, APHIS failed to prepare $)4?.*1*-./$1)$;;";;'"(&9 to

determine whether any threatened and endangered species that may be present within or near the

areas of the proposed actions may be affected, in violation of the ESA. 16 U.S.C. § 1536(c)(1);

50 C.F.R. § 402.12.


08-011-106rm, and 09-070-101rm, APHIS failed to consult with FWS regarding the potential

adverse affects of the ArborGen Eucalyptus hybrid permits on threatened and endangered

species, and critical habitat, in violation of the ESA. 16 U.S.C. § 1536(a)(2); 50 C.F.R. §

402.13-14.

95. APHIS has failed to insure that ArborGen will not make any irreversible or

irretrievable commitment of resources with respect to permits 06-325-111r, 08-151-101r, 08-

039-102rm, 08-014-101rm, 08-011-106rm, and 09-070-101rm, prior to initiating and completing

consultation with FWS, in violation of the ESA. 16 U.S.C. § 1536(d).

96. APHIS failed to comply with non-discretionary obligations under the ESA


27

prior to approving permits 06-325-111r, 08-151-101r, 08-039-102rm, 08-014-101rm, 08-011-

106rm, and 09-070-101rm, in violation of the ESA. 16 U.S.C. § 1540(g).

97. APHIS unilateral 4(*)"++"/&9)<"&"%'.($&.*()+*%)#"%'.&;)YO-325-111r, 08-

011-106rm, and 08-014-101rm, violates the ESA, 16 U.S.C. § 1536(a)(2), and is

arbitrary, capricious, an abuse of discretion, not in accordance with law, and without

observance of procedure required by law, pursuant to the APA. 5 U.S.C. § 706(2).

SIXTH CLAIM FOR RELIEF

Defendants Violated the ESA By Failing to Consider and Consult with FWS on All Phases and &3")E(&.%")8/*#")*+),%?*%@"(A;)8&%$&"-=)+*%)&3")Eucalyptus Hybrid in the Southern United States 98. Plaintiffs hereby incorporate by reference all preceding paragraphs.

99. ArborGen has an overall strategy for introducing its Eucalyptus hybrid throughout

the southeastern United States. In the past five years, ArborGen has requested a permit to import

this hybrid into the United States, has requested at least seven separate permits to plant and allow

to flower its experimental hybrid at over 30 undisclosed sites across seven states, and has

petitioned for this Eucalyptus hybrid to be deregulated. All permits, requests, and petitions are

from the same company, to the same agency, for the same genetically engineered hybrid species,

for future use in the same region of the county.

100. Defendants failure to consider and consult with FWS regarding the potential

direct and indirect effects of granting numerous permits allowing the import, planting, and

flowering of the Eucalyptus hybrid, along with all interrelated and interdependent decisions and

$/&.D.&.";>).(/10<.(-),%?*%@"(A;)<"%"-01$&.*()#"&.&.*(>)*()&3%"$&"("<)$(<)"(<$(-"%"<);#"/.";)$(<)

their critical habitat violates the ESA. See 16 U.S.C. § 1536(a)(2). Similarly, Defendants failure

to comprehensively consider and consult with FWS on all phases, the entire scope, and the


28

*D"%$11)/0'01$&.D").'#$/&;)*+),%?*%@"(A;)#"%'.&;>)#"&.&.*(>)$(<);&%$&"-=)*()&3reatened and

endangered species and their critical habitat violates the ESA. Id.

101. Defendants consideration of each ArborGen permit and petition separately,

without consideration of the interrelated, interdependent, and cumulative effects of the

compan=A;)*D"%$11);&%$&"-=>)D.*1$&";)the ESA. See 16 U.S.C. § 1536(a)(2).

RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request that this Court:

A. Declare that Defendants have violated NEPA by approving permits 05-072-03m,

08-039-102rm, 08-151-101r, and 09-070-101rm, significantly amending permit 06-325-111r, and

approving permits 08-011-106rm and 08-014-101rm;

B. Declare that the EA prepared for permits 08-011-106rm and 08-014-101rm

violates NEPA;

C. !"/1$%")&3$&)!"+"(<$(&;)+$.10%")&*)#%"#$%")$()E78)&*)$<<%";;),%?*%@"(A;)*D"%$11)

strategy, permits, and petition concerning the Eucalyptus hybrid violates NEPA;

D. Compel Defendants to prepare an EIS to address the overall, cumulative

environmental impacts of all ArborGen permits and petitions concerning the Eucalyptus hybrid

and its introduction to the southeastern United States;

E. Declare that Defendants violated the ESA in approving permits 06-325-111r, 08-

151-101r, 08-039-102rm, 08-014-101rm, 08-011-106rm, and 09-070-101rm;

F. Set aside Defen<$(&;A)$##%*D$1)*+)permits 05-072-03m, 08-039-102rm, 08-151-

101r, 09-070-101rm, 08-011-106rm and 08-014-101rm>)$(<)!"+"(<$(&;A);.-(.+./$(&)$'"(<'"(&)

of permit 06-325-111r;

G. Enjoin Defendants from allowing any Eucalyptus hybrid trees that are authorized


29

by permits 08-039-102rm, 08-151-101r, 09-070-101rm, 08-011-106rm, 08-014-101rm, and the

significant amendment of permit 06-325-111r, to flower pending completion of a legally

adequate EIS that addresses the cumulative impacts of all of these related permits in addition to

,%?*%@"(A;)#"(<.(-)deregulation petition;

H. Enjoin Defendants from allowing any Eucalyptus hybrid trees that are authorized

by permits 06-325-111r, 08-151-101r, 08-039-102rm, 08-014-101rm, 08-011-106rm, and 09-

070-101rm to flower pending completion of a legally valid consultation with FWS pursuant to

the ESA regarding the potential impacts of these permits, and interrelated and interdependent

activities, on threatened and endangered species;

I. Declare that Defendants have violated the Food, Conservation, and Energy Act of

2008 by failing to implement its directives by the statutory deadline;

J. Enjoin Defendants from allowing any Eucalyptus hybrid trees that are authorized

by permits 08-039-102rm, 08-151-101r, 09-070-101rm, 08-011-106rm and 08-014-101rm to

flower pending compliance with the Food, Conservation, and Energy Act of 2008;

K. Award to Plaintiffs their costs, expenses, expert witness fees, and reasonable

attorney fees pursuant to applicable law including the Equal Access to Justice Act, 28 U.S.C. §

2412, and ESA, 16 U.S.C. § 1640(g)(4); and

L. Grant Plaintiffs such further relief as may be just, proper, and equitable.

Dated: August 10, 2010. Respectfully submitted, s/ Jeanne Marie Zokovitch Paben Jeanne Marie Zokovitch Paben (FL Bar No. 0418536) Assistant Professor of Law Director, Earth Advocacy Clinic Barry University, Dwayne O. Andreas School of Law 6441 E. Colonial Drive Orlando, Florida 32807 Tel: 321-206-5761


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Fax: 321-206-5755 [email protected]

Marc D. Fink, pro hac vice Center for Biological Diversity 209 East 7th St. Duluth, Minnesota 55805

Tel: 218-525-3884 Fax: 817-582-3884 [email protected] George A. Kimbrell, pro hac vice The Center for Food Safety International Center for Technology Assessment 2601 Mission Street, Suite 803 San Francisco, CA 94110 Tel: 415-826-2770 Fax: 415-826-0507 [email protected] Attorneys for Plaintiffs


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Certificate of Service I hereby certify that on Tuesday, August 10, 2010, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or parties identified on the attached Service List in the manner specified.

s/ Jeanne Marie Zokovitch Paben Jeanne Marie Zokovitch Paben


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SE R V I C E L IST Center for Biological Diversity, et. al

vs. Animal and Plant H ealth Inspection Service; and United States Department of Agriculture

Case No. 2:10-cv-14175-K M M

United States District Court, Southern District of F lorida

Peter C . Whitfield US Department of Justice Environmental & Natural Resources Division PO Box 663 Washington, DC 20044-0663 202-305-0430 202-305-0274 (fax) [email protected] [CM/ECF]


Documents

U N IT E D S T A T E S D IS T R IC T C O U R T S O U T H E ... Complaint (filed).pdf · c ase n o. 2 :10-cv-14175-k m m c ent er f or b io l og ic a l d ivers ity; do gw oo d a lli